If the facts alleged in the complaint are true, this case involves an incident that is more like home raids by Red Guards during China’s Cultural Revolution than like what we should expect in the United States of America. A surprise raid was made on a judgment debtor’s home to enforce an order of execution on property of the debtor. The order was ostensibly for the purpose of obtaining property of value to be seized, but was obviously focused instead on all means for the debtor to express ideas.

The debtor was required to sit on his couch while flak-jacketed U.S. Marshals, along with agents of advocates for moral and political positions that the debtor despised, plus persons with unknown identities and purposes, went through and seized the books and papers, and computers and cameras, of the debtor and his family. The only exception was for children’s books and Bibles. The interior of the home was videotaped. The debtor was not allowed to leave the couch, to go outside, or to call his lawyer, although eventually a marshal called the debtor’s lawyer.

This kind of home attack on the ability to convey ideas should not happen in our Republic. It is true that the debtor’s ideas — that it is moral to take violent, illegal action to stop abortions — are repugnant. But it is contrary to our fundamental norms to permit government-sanctioned attacks on the purveyance of ideas, even when those ideas are repugnant.

I should stress again that this opinion is based on the allegations, not any proven facts; that’s the nature of a decision at this stage of the litigation: When a defendant moves to dismiss a complaint on legal grounds, or when the court of appeals hears an appeal of such a dismissal, the court asks whether the facts as alleged by the plaintiff would be legally sufficient for the plaintiff to win. Only if the answer is yes does the case get on track for trial, which would eventually figure out what the facts were. Still, my sense is that judges don’t use such harsh language, even hedged with “[i]f the facts alleged in the complaint are true,” unless they think that there’s something to the allegations.

In any event, the Brays lose, though partly on procedural grounds and partly on qualified immunity — “although some of the actions allegedly carried out by the marshals and not explicitly authorized by the order were not constitutional, that unconstitutionality was not then clearly established with sufficient specificity.” [UPDATE: Note also that the Brays had settled and dismissed claims against PPCW (Planned Parenthood Columbia-Willamette) and PPCW's law firm.] Here was the court’s reasoning for why some of the defendants’ alleged actions were unconstitutional (if the allegations are true):

Because the overwhelming focus of the writ was media and communications property, the relevant constitutional analysis is particularly exacting. The Fourth Amendment originated, in part, as a safeguard for free speech, and “[w]here the materials sought to be seized may be protected by the First Amendment, the requirements of the Fourth Amendment must be applied with scrupulous exactitude.”

Under a “scrupulous” application, the Fourth Amendment was violated by the detention of Michael Bray for four hours with no access to outside communications while armed, flakjacketed U.S. Marshals worked with an organization Mr. Bray despised to seize his books and manuscripts (including books and manuscripts of insignificant market value) for the ostensible purpose of satisfying a debt. Reasonableness is determined by “balanc[ing] the nature and quality of the intrusion on the individual’s Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion.” Scott v. Harris, 550 U.S. 372, 383 (2007) (internal quotations and citations omitted). A detention or search that occurs within the home is subject to particular scrutiny because, among the places and things protected by the Fourth Amendment, “the home is first among equals. At the Amendment’s very core stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.”

No countervailing governmental interest justified the four-hour detention of Michael Bray. For one thing, the raid presented none of the operational and safety concerns that may justify seizing the occupants of a home during the execution of a criminal warrant. Allowing Michael Bray to leave his home or to use the telephone would not have threatened the completion of the search.

Nor would an unrestrained Michael Bray have presented a safety concern. To the contrary, the marshals’ own actions belie that argument. Had the marshals believed that not restraining Michael Bray risked violence, they would not likely have permitted numerous representatives of PPCW to join in a surprise raid of his home.

Inviting multiple representatives from PPCW to join the search did more than undermine the argument that the marshals believed Michael Bray to be a safety threat. In addition, the action violated the Fourth Amendment because it exceeded the writ, which authorized only “a representative from [PPCW]” to “be present to assist in the identification of property subject to seizure.” Contrary to this clear instruction, the marshals permitted not one, but “numerous” representatives of the organization to join the raid….

Adding further support to the conclusion that the marshals’ actions violated the Constitution, the presence of multiple unauthorized representatives of PPCW served no valid purpose under the writ. Although the Fourth Amendment does not require that all conduct by an officer within a home be expressly authorized by a court order, it does demand that actions relate to the lawful objectives of the order. PPCW had no articulated expertise in satisfying the ostensible purpose of the writ, identifying valuable goods to satisfy a monetary judgment.

Moreover, because the presence of additional representatives of PPCW was not authorized, and because the writ made no provision for the use of a camera, it was a violation of the Fourth Amendment to permit the organization to film the home. A person who is not lawfully present in a home may violate the Constitution by engaging in warrantless filming of the area. The Supreme Court made clear in [Wilson v. Layne, 526 U.S. 603, 611 (1999)], that the right to be present in a home does not necessarily entitle police to bring photographers with them. In this case, the unauthorized filming of the Brays’ home was particularly unreasonable because the raid was unannounced and the filming occurred within the home itself. Moreover, because of the location and nature of the filming, the use of the camera posed a heightened risk of intimidating the family and capturing its intimate, unguarded moments.

Viewed in the light most favorable to the plaintiffs, the marshals’ asserted actions add support to the argument that the ostensible goal of the raid (identifying valuable goods to satisfy a monetary judgment) served as a pretext for intimidating the Brays and identifying disfavored books and papers for confiscation. This inference is particularly strong in light of the writ’s focus on expressive materials of negligible market value. For example, the writ authorized the marshals to seize “all copies of materials written by [Michael Bray], both in published and unpublished form.” (Emphasis added.) Expressive content cannot be targeted for confiscation, for instance under RICO, without a judicial determination that it is unlawful or otherwise intertwined with an illegal enterprise. Similarly, when compensating the victims of a crime, it is presumptively unconstitutional to target the profits associated with publications describing that crime.

Of course, the Brays have not raised these specific arguments. Nor have they challenged the underlying writ, the constitutionality of which we therefore do not address. Nonetheless, the Fourth Amendment is not read in a vacuum, and “[a] seizure reasonable as to one type of material in one setting may be unreasonable in a different setting or with respect to another kind of material.” In light of concerns about free speech and the sanctity of the home, and for the more specific reasons identified above, the marshals’ alleged actions in executing the writ were unreasonable, and they violated the Brays’ rights under the Fourth Amendment.

Thanks for the pointer to reader, and my former local counsel, Michael F. Smith.

Eugene Volokh teaches free speech law, religious freedom law, church-state relations law, a First Amendment Amicus Brief Clinic, and tort law, at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy.

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